Sony lawyer: $150K damages per song “certainly” appropriate

The Jammie Thomas-Rasset retrial swung into high gear this afternoon as one of …

How much cash do the record labels deserve for Jammie Thomas-Rasset's alleged copyright infringement? Defense lawyer Kiwi Camara pressed Sony Entertainment's Gary Leak on that point today, trying to force him to pick a number. Leak refused to be baited. It was "impossible to determine harm" in this case, he said, which is why the labels want statutory damages that can range from $750 to $150,000 per song.

"You can't tell the jury a number?" he asked aggressively. No, said Leak, it's up to them to decide; the law allows these damages, and we are asking only what's allowed under the law. The jury must pick the award.

Camara wouldn't give it up. He asked if, by Leak's logic, even the maximum $150,000 per song damage award would therefore be an appropriate amount.

Leak at last gave in. "Certainly!" he said in apparent exasperation, milliseconds before an objection from recording industry lawyers put an end to that line of questioning.

Bulldog on defense

Camara showed himself to be an aggressive litigator today as the trial kicked off in earnest—perhaps too aggressive. Leak was the day's first witness, and before his testimony was over, Camara had been reproved twice by Judge Michael Davis.

He had a habit of asking rapid-fire questions or mounting objections before a witness of the opposing lawyer had finished speaking, and Davis quickly put a stop to that. "You cannot interrupt opposing counsel," he warned early on, turning the slow burn of his eyes on Camara. Minutes later, a second warning about talking over witnesses—"let's get this straight so we don't have any problems later on," said Davis.

Camara did give a strident opening statement in which he proclaimed Thomas-Rasset's complete innocence of the charges. "They have no evidence that Ms. Thomas did it," he said, pinning his hopes on the fact that the evidence only identifies a particular cable modem and not a particular user.

Thomas-Rasset has 200 CDs that she purchased, Camara said. "Ms. Thomas buys music, she doesn't steal it... She's one of the recording industry's best customers!"

As for the hard drive that was swapped out of her computer just a month after her alleged infringement was detected, Camara says that his client never received the notices about an investigation and replaced her hard drive for a simple reason: her 10-year old son got frustrated playing a game, hit the machine, and its hard drive broke. She took it to Best Buy and they replaced the drive. Situation clarified!

The recording industry case

But it's not, not completely, and the RIAA certainly doesn't buy it. For one thing, Thomas-Rasset was notified twice, first by instant message through KaZaA and once by FedEx package from her ISP, Charter. (She claims that she never saw either notice.)

There's also the little matter of the tereastarr@KaZaA username that investigators MediaSentry discovered. Thomas-Rasset turns out to have used the "tereastarr" username for her Charter e-mail address and a host of other online accounts; if she never used KaZaA to download or distribute music, then why did her computer have a KaZaA install with her preferred username? And that hard drive swap-out... the timing is suspicious.

US District Court, Minneapolis

Tim Reynolds, the recording industry's chief litigator in the case, made these points during his own opening statement. "The infringement in this case was substantial—massive," he told the juror, pointing out that the tereastarr@KaZaA share folder contained more than 1,700 songs.

This, he said, is not "sharing like we teach our children."

The recording industry's case unfolded in expected fashion. MediaSentry presented its evidence of having caught the tereastarr@KaZaA user sharing files; the company downloaded complete copies of 11 songs from that user and grabbed the metadata on nearly 2,000 more.

Seeking to head off the argument that these were all just CD rips, MediaSentry's Chris Connelly pointed to metadata in numerous songs that suggested the material had itself been downloaded from the Internet. "Bleeding Edge Ripping Crew," said one. "Uploaded by 0ff$3+," said another.

A Charter representative helped connect the dots, explaining how the ISP could connect the IP address logged by MediaSentry to a particular user account—in this case, to Jammie Thomas-Rasset.

The evidence appears to be quite strong, though Camara is of course right that it cannot prove in some absolute sense that it was Thomas-Rasset behind the keyboard back in 2005. That may not matter; the standard of judgment is more lenient in civil cases, and this defense failed the first time around.

Did the jury follow everything being said? With hours of testimony about MAC addresses, IP addresses, KaZaA, instant messages, share folders, MP3s, metadata, and more, the evidence might well have been difficult to take in. Jurors took notes, of course, but several testified that they could not use computers without assistance, while most others appeared to be casual computer users at best.

Still, the recording industry did a fine job of connecting the threads, always coming back to the link between the IP address, Jammie Thomas-Rasset's cable modem, and her "tereastarr" username.

A repeat in the making?

Perhaps the biggest moment of the day went totally unnoticed by jurors. During Leak's testimony, the recording industry legal team moved to enter Sony's eight copyright registrations into evidence. Camara and his team have tried to question these, hoping to undercut the entire trial, but the RIAA managed to produce certified copies of the documents this morning and the judge ultimately accepted them into evidence.

Once that happened, Camara's big gambles failed to pay out: MediaSentry's evidence was in, the copyright registrations were in, and his proposed fair use defense was out. The case now looks like it will play out last it did last time, with Thomas-Rasset taking the stand to declare that she didn't do it.

And there was evening, and there was morning, the first day. Stay tuned for more reports from Minneapolis Tuesday, when Jammie Thomas is expected to take the stand.

*sigh* I wish she wasn't trying to be the poster child for the anti RIAA offensive so to speak, her case is bad, very bad. If she looses and she likely will, it might set a nasty precedent. IANAL but that's how I see it.

That Sony lawyer should be disbarred around the world on ground of utter madness. 150K a song? When a CD of an average of 10-15 songs costs at most $20? It is lunacy at it's most arrogant!

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Originally posted by Stabicron:*sigh* I wish she wasn't trying to be the poster child for the anti RIAA offensive so to speak, her case is bad, very bad. If she looses and she likely will, it might set a nasty precedent. IANAL but that's how I see it.

Let the RIAA bastards win this paltry court case. It only effects the but not the culture. It will just make them look like even bigger assholes to the informed music lovers of the world. Since the case is getting so much press that will be millions of people around the world. Torrenting of music is never going to stop. In the end it is the RIAA and all their music mafia friends that will lose.

Artists will juts have to all go solo. Such is life. They all make their money on touring anyways. That is why I always buy an over priced shirt from the bands I support.

*sigh* I wish she wasn't trying to be the poster child for the anti RIAA offensive so to speak, her case is bad, very bad. If she looses and she likely will, it might set a nasty precedent. IANAL but that's how I see it.

If I'm not mistaken jury verdicts don't set precedent because juries decide the facts, not the law, and precedents only apply to the law. The important happenings in this case are what the judge decides: That making available is not infringement, that the media sentry evidence is admissible in Minnesota, etc. And some of it won't make any difference. The defendant can't raise fair use in this case because she waited too long to bring it up, but that doesn't mean some other defendant won't have the chance to argue it in some future case.

As for $150,000/song, that can only be a reasonable number if the RIAA transfers ownership of the copyrights to Ms. Thomas as part of the deal.

$150K for non-commercial infringement is so ludicrous as to make the law meaningless. You can only push these numbers so far before they make no sense. A reasonable number would be more on the par of $150 dollars.

Think about it. A fine of a few thousand dollars hurts. I could pay it but I wouldn't like it. It would have a chance of affecting my and others future behaviour. On the other hand a fine of a few million dollars or even hundreds of thousands would be completely meaningless to me. I would never have a chance to pay it. I would either try to bankruptcy out of it or just ignore it. There would really be no other option. There is no debtors prison, so its not like they can lock you up for not paying.

The copyright brigade needs to really rethink their position. They should be the ones fighting the hardest for copyright reform. It needs to be make back into a reasonable and useful system or it will become irrelevant and ignored even more than it is today.

Notice that I am not arguing whether she did it or not. I am just questioning something:

The MediaSentry evidence is based around what?

If it is screenshots of her IP uploading stuff, can't those be doctored to put in whatever IP you want? The metadata for the other songs can be faked as well, Yeah, we got the metadata off her computer, but you can actually go to another site and get the metadata for the songs there as well.

If that is the case, am I missing something? If that is the evidence, it seems rather easy to debunk it.

$150K for non-commercial infringement is so ludicrous as to make the law meaningless. You can only push these numbers so far before they make no sense. A reasonable number would be more on the par of $150 dollars.

Even $150/song is ridiculous. The RIAA is claiming she was sharing ~1700 songs, so make it $150/song and next time they download all of them and we're back in the hundreds of thousands of dollars. To say nothing of the fact that this is still >200 times the ~0.70 profit the RIAA makes per song, and even that is higher than the actual damages when you consider the guaranteed non-1:1 ratio of downloads to lost sales.

Wikipedia says punitive damages of 4:1 actual damages is very high and maybe unconstitutional and 10:1 is almost certainly unconstitutional. What planet are these industry people from where >200,000:1 is something other than flagrantly preposterous?

...and the punishment for irrational behavior is vestigilization... dinosaurs. They're only doing harm with such nonsense. If the shout is enjoyed others will shout, get over it. You catch more flies with honey than vinagre, etc.

Originally posted by macemoneta:How much did Sony pay out for their rootkit in the NY class action? Oh, that's right. $7.50 per album for actual damage to people's property. Sounds like a good number for the payment here as well.

Ever hear of "jury nullification"? The whole RIAA bully business really deserves it. Clearly it hasn't made any real money for the recording industry. It hasn't stopped people sharing music. It hasn't made artists any wealthier. It has pretty much only served to make the RIAA look like the unpleasant thugs they are and to piss off a lot of paying customers. Its about time juries threw out every one of these cases to "send a message" to the RIAA that they're wasting money pursuing this method (read: scare tactics) to try to change human nature. It just hasn't worked because human nature is a lot harder to change than this. See also, "The War on Drugs".

One other thing: since when does someone using your username/password constitute legal proof that it is you who is using it? And with the preponderance of Windoze viruses, bots and (Sony) rootkits, perhaps this defendant's computer legitimately was recorded as having downloaded or uploaded files, but what if it was virus code that did it? Bottom line is unless someone sees a user down or uploading files, has them on video, or the user admits it, there is no way (absent biometric login devices) to prove the named defendant actually did anything!

Originally posted by flynn:$150K for non-commercial infringement is so ludicrous as to make the law meaningless. You can only push these numbers so far before they make no sense. A reasonable number would be more on the par of $150 dollars.

I think you are falling for their trap. They quote a ridiculous number so you accept a still ridiculous but lesser number. This isn't haggling. In other incidences of theft/damages/loss, they court remedy is usually equal to the actual value, maybe double if there are grievous conditions. So consider the value $1, 2$ if the conditions are grievous.

Charging 100 times or 100 000 times the price to send a message, is on par with having capital punishment for speeding to send a message. After all collectively speeding kills some people, so everyone who speeds should pay with their life if caught.

This isn't how the law should work. Punishment should fit the crime, you shouldn't have to pay for everyone elses crime, only your own.

Sometimes, i really love the brazilian legal system. It's great for attorneys.

Down here, if Sony's lawyer demands 150k USD statutory damages for each song, and the judge's ruling grants only 750 USD statutory damages, Sony has to pay the defendant's lawyer 29850 USD (20% of the difference from the sum demanded and the sum granted) per song, as attorney fees.

$1 per song actual damages would only make sense if she was only downloading. The problem is determining how many times she uploaded the song (another $1 each, and possibly how many times they uploaded the song....), and the point of statutory damages is to give a value when the actual damages are impossible to determine. Having said that, I don't think it matters what the damages are, if she loses and is made to pay the RIAA costs, it would bankrupt her anyway.

1.Actually there is no proof because there is no hard drive. 2.Allowing Media Sentry testimony is illegal by Minnesota's OWN laws.3.If you can not wire tap a terrorist they why can you wire tap the Internet, you can't as making changes to peoples computers without their consent is Illegal.4.When recording someone party has to be notified I didn't know that Media Sentry is a Federal Agency I doubt the suspect was notified.5. Media Sentry is testifying as a Private Detective yet they are not being held accountable or have they been asked to prove if their methodology works.6. No chain of possession has been established.

That statement shows cruel and unjust punishment. What happened to a fair and just punishment? If the CD cost $20, then the limit should be 3X the costs just like everything else. That is if she stole the whole CD. One song should be 1/10 (10 songs per CD) times 3, max.

The circus has started in earnest! All hail the mafiAA! A master of fantasy land America where copyright is king and public domain is a quaint antiquated notion for the unwashed masses.

Remember boys and girls the show must go on! The line forms in the rear and dont try to remember anything you see or hear because you will be held liable for millions of dollars of fictitious lost revenue as a result of your infringement. Your brain is a recording device after all and it is not properly licensed - YET...

Punishing COMMERCIAL copyright infringement @ 150K per song seems fair. An attempt to MAKE money selling what wasn't yours should drain every cent you had.

Punishing NON-COMMERCIAL copyright infringement the same way? Nope. A few hundred dollars tops. Huge legal costs collecting data and paying greedy lawyers? Should have thought of that before wasting the money.

NO, RIAA, it's not 'commercial' if they would have had to pay for it otherwise, and it's not 'making money' to save the pocket change each song would have cost. No, it ISN'T...

Originally posted by ohsonice:1.Actually there is no proof because there is no hard drive. 2.Allowing Media Sentry testimony is illegal by Minnesota's OWN laws.3.If you can not wire tap a terrorist they why can you wire tap the Internet, you can't as making changes to peoples computers without their consent is Illegal.4.When recording someone party has to be notified I didn't know that Media Sentry is a Federal Agency I doubt the suspect was notified.5. Media Sentry is testifying as a Private Detective yet they are not being held accountable or have they been asked to prove if their methodology works.6. No chain of possession has been established.

1. That's like saying that a PI's photo of your husband's "business trip" isn't proof because he isn't there any more.2. No it's not. The judge ruled on this. Until it is appealed and a higher court overturns it, their testimony is legal.3. MediaSentry did no wiretapping of anyone except themselves (which is perfectly legal), and did nothing to JT's computer. As someone pointed out in a previous article, preventing you from examining the IP addresses in packets sent to you would cripple the internet.4. See #3.5. Valid.6. Valid.

If that is the case, am I missing something? If that is the evidence, it seems rather easy to debunk it.

I imagine the case is largely based on the testimony of MedaSentry employees that the screenshots, etc are not in fact fake.

I don't see it as though the guy was assuming that the evidence was fake, but instead as the evidence could easily be faked. I mean, if you really think about it, you have a simple "it's our word versus hers" prosecution. The screenshots could be made by any competent graphic designer (or rather, anyone competent with PhotoShop). I'm not saying they are in this case, but they could be in any case. So if the two main points of evidence they have are the metadata--which could be pulled from any copy from any user that had one of the alleged infringing songs she had up--and the screenshots of her shared folder, that seems like far from conclusive proof of guilt.

I realize this is a civil case, and therefore a smoking gun will not be possible as evidence of wrongdoing on the defense's part; but it seems like there should at least be more to go on than just screenshots and here's what we say we found in the metadata.

I agree, all this evidence is being presented in the same manner as a private investigator would present evidence in a court of law. Why, again, is this permissible without having a P.I. license in the state of Minnesota?

To Cherilina et. al. re: the screenshots/metadata/etc.It's been pointed out that the standard of proof in civil cases is a preponderance of evidence (means 50.0000000001% of the evidence, aka "more likely than not"). This applies to every aspect of the case. The jury is free to disagree that the evidence points to her infringement, but they must be convinced by Thomas's attorney that this(that they were doctored, that it's likely they were doctored, that they aren't reliable evidence) is more likely than not to be the case with them.

Again, I think it hinges on Thomas's expert to spread the FUD about the RIAA's evidence (not in the perjorative sense, in the sense that that is usually any Defendant's role in a case) and hold the Plaintiff (or prosecution, but this is a civil case so there is no prosecution) to their burden. Thomas, legally, has to prevent NO evidence. If the RIAA was unable to convince the jury by the time they've presented all of their evidence (including cross-exam by Thomas's atty), she'd be entitled to a directed verdict in her favor.

What I don't understand is why it wasn't an immediate mistrial; if the RIAA lawyer's opening remarks stated that Ms. Thomas has >1700< songs illegally on her HDD, that should have been grounds right there... the dispute is over >24< songs, and evidence of activity outside of the grounds of the complaint is inadmissible; by stating more than the simple evidence of the case (24 songs), the lawyer gave testimony, not an opening statement. In most court systems, that would be grounds for judicial punishment right then and there, as if the RIAA is not bringing in all 1700 songs, then they have now prejudiced the jury. If they are, then the case needed to be amended, but since the case was then under active litigation, it was too late.

Or is Camara going to use that as one of the appeals if the RIAA wins (big; if the RIAA wins a token, say $240 with each side responsible for their own legal costs, which I would find reasonable, I say you let it go)

Originally posted by David Bradbury:I am concerned about the hard drive. Not that it was swapped out, but rather that the RIAA seems to think that lack of evidence is evidence.

They also don't seem to have any way of confirming that Jamie was infactnotified of pending action against her. An "instant message" certainlyisn't good enough. Neither is a parcel delivery without a signature.

It looks like the whole bit about the hard drive being replaced shouldhave been thrown out, either that or important details are being leftout of the accounts.

Originally posted by axia777:Think about it. A fine of a few thousand dollars hurts. I could pay it but I wouldn't like it. It would have a chance of affecting my and others future behaviour. On the other hand a fine of a few million dollars or even hundreds of thousands would be completely meaningless to me. I would never have a chance to pay it. I would either try to bankruptcy out of it or just ignore it. There would really be no other option. There is no debtors prison, so its not like they can lock you up for not paying.

You mean, a few thousand like the riaa offer to accept in a pre-settlement letter? She should have taken that, cause I'm pretty sure that the's going to end up on the wrong end of another verdict several times that (plus having to pay lawyer fees.)

In my mind, her best chance would have been to try to get some sympathy from the jury. Say she got confused by Kazaa, didn't know she was uploading. Then play up that she was a poor single mom who couldn't afford the pre-settlement and wanted a chance to explain to a jury. Then hope and pray that the jury has sympathy for you and choose $750 per song instead of $150,000.

I think the riaa evidence is pretty good - not bullet-proof, but good enough for a civil case*, and it sounds like their lawyers have done a better job than Jammie's have so far. If she's going to get off, she's going to have to do a lot better on the witness stand than she did last time.

* - think about if from the riaa point of view - if you were trying to gather evidence against file swappers, what would you do differently than mediasentry does?

Originally posted by mboza:... The problem is determining how many times she uploaded the song (another $1 each, and possibly how many times they uploaded the song... ... if she loses and is made to pay the RIAA costs, it would bankrupt her anyway.

That number is probably zero, if I understand how KaZaa works. She didn't upload squat. She set up KaZaa, and made the files available for others to download. Since we're talking about a court case, these fine distinctions matter.

The Sony lawyer saying $150,000 per song is "certainly" appropriate speaks volumes about their arrogance and disconnect with average people. He may be able to afford such a stratospheric penalty, but it will probably bankrupt Thomas many thousand times over.The idea of it being that high to make an "example" of her is a brutal synergy of greed and cruelty that I hope the jury sees for what it is.Considering the reported non-technical mindset of jurors, their gut reactions will probably factor in more than if they were all computer literate. This may be the only hope for the defense, since all their other tactics have been defeated. When I read what Camara was planning, I was pretty sure they were boned.

Let's see. There are 6 billion people in the world that Jammie made the songs available to. At the extreme, let's say all $6 billion people might have purchased the $20 CD if it weren't freely downloadable. So the maximum that Sony could claim for any CD is $120 billion. Let's say 12 songs per CD, so that's $10 billion per song. Sony is only asking for $150,000 per song, or 0.0015% of their potential losses.

I think this is direct testimony to the fact that the RIAA has no intent to prove a civil case against this individual in terms of how her behavior actually damaged the plaintiffs financially, and instead is only interested in using the civil court process as a forum from which to send a public-relations "message."

Unless I misunderstand, the heart and soul of the civil system is that a plaintiff must be able to prove damages against a defendant, in court and according to rules of evidence and law, in order to prevail. Here we have a plaintiff witness under direct testimony stating that the plaintiff has no idea whether it has been damaged financially by the defendant. Indeed, the witness states that in his opinion proving damages is entirely irrelevant since the plaintiff wishes to infer that statutes themselves constitute proof of financial damages--when of course they do nothing of the kind. Any simpleton can see that.

In my opinion, plaintiffs have stated fully and openly their complete contempt for the civil justice system, its rules and its purpose. It baffles me how a judge, any judge, would willingly be a party to this sort of attitude and behavior.

The plaintiff's notion is that the burden of proof is on the defendant when indeed it should be on the plaintiff entirely. Having admitted in open court during direct testimony that plaintiff has no idea as to whether it has been damaged financially, and that plaintiff has not one shred of evidential proof to show such direct damages, it would seem to me that the case would be summarily tossed because of a lack of evidence.

Even by virtue of allowing the MediaSentry evidence--which I think is a mistake on several grounds--there can be no assumption, let alone proof, of financial damages through the MediaSentry venue of discovery. Indeed, civil trials ought not be about assumptions but strictly and exclusively about proof. What has been proven is a type of debatable conduct by the defendant. The problem for the plaintiff is connecting that conduct with direct damages that plaintiff can prove. Stating that "We lean on the statutes" is not proof of damages. Stating that "We want to send a message" is not proof of damages. Stating that "It is impossible to prove harm" ought to be the cue for the judge in this case to say, "Well, then, it is impossible for me to find for the plaintiff." QED.

This case is not about broad generalities nor is it about public-relations forums. Rather it is a specific case launched against a specific individual, and this is all that it is. If plaintiff cannot prove damages incurred by this individual, plaintiff should lose its case against this individual.

Originally posted by axia777:Think about it. A fine of a few thousand dollars hurts. I could pay it but I wouldn't like it. It would have a chance of affecting my and others future behaviour. On the other hand a fine of a few million dollars or even hundreds of thousands would be completely meaningless to me. I would never have a chance to pay it. I would either try to bankruptcy out of it or just ignore it. There would really be no other option. There is no debtors prison, so its not like they can lock you up for not paying.

Originally posted by whquaint:Let's see. There are 6 billion people in the world that Jammie made the songs available to. At the extreme, let's say all $6 billion people might have purchased the $20 CD if it weren't freely downloadable. So the maximum that Sony could claim for any CD is $120 billion. Let's say 12 songs per CD, so that's $10 billion per song. Sony is only asking for $150,000 per song, or 0.0015% of their potential losses.

Somebody check my math.

Your math seems fine... But, math is not the issue here--not at all. The issue in civil court, most especially when it is an individual being sued for financial damages (since there is no other basis for proceeding in civil court), is whether or not the plaintiff can prove that the defendant damaged it by a specific amount. All civil suits begin with allegations of damages--the allegations themselves are empty and without merit until proven during the course of the trial. If they cannot be proven they are tossed.

About your math. First, you would have to prove that 6 billion people were running Kazaa. Second, you would have to prove that all of those six billion people accessed Ms. Thomas's public folder and downloaded the same files that MediaSentry downloaded. There are several more things you would have to prove in court to back up your math, but suffice it to say that if you cannot prove these first two conditions then your math is baseless for the purposes of this lawsuit.

Last, I can assure you that if six billion people tried downloading these files that Ms. Thomas would definitely have known about it since such a demand would have shut down her ISP, most likely...

It seems to me that all the plaintiff has proven here is that at some point these files resided in Ms. Thomas's public Kazaa folder. They have already testified that as to how many people actually downloaded these files from her computer they have no proof at all. Incredibly, they have testified under oath that the obtainment of such such proof is "impossible," as if impossibility was some kind of civil justification. The only thing they can prove to judicial standards is that MediaSentry downloaded these files on such and such a date. Since MediaSentry is in the employ of the plaintiff there can be no damages directly attributable to Ms. Thomas from the MediaSentry activity.

The point to be made is that in civil cases imaginary constructs of mathematical proportions have no place. What counts and all that counts is the proof the plaintiff can show relative to the defendant.

At some point, whether in this trial or not, this principle will be upheld, and it could very well be that that the RIAA will have to return that which it has gained up to that point in the way of damages--since it is clear that by using the MediaSentry method the RIAA proves nothing in the way of damages against a given defendant.